2005 (98) ECC 54 (ATFFE)

APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE

New Delhi

Shri O.P. Nahar, Member and Smt. P.N. Santhakumari, Member

Dynatron Pvt. Ltd.

Versus

Director of Enforcement

Appeal No. 350/2004

[Appeal against adjudication Order No. ADJ/680/AD/BDB/B/2003 dated 27.5.2003]

Order Dated 17.5.2004, Certified on 25.5.2004

Foreign Exchange Regulation Act, 1973

Section 8(3) r/w 8(4) r/w S. 49(3) and 49(4) of FEMA, 1999 -- Penalty -- Appellant failed to account for the utilisation of the foreign exchange -- As the documents of import i.e. Bill of entry filed with the authorised banker by the appellant, contravention of Ss. 8(3) and 8(4) was difficult to make out or sustain. However, documents were required to be considered. The adjudication order did not outline that the documents were considered before passing the order -- Matter remanded.

PRESENT :

Shri Rajendra Kookada, Advocate for the appellant.

Shri T.K. Godoo, DLA for the respondent.

ORDER

The appellant has challenged by this appeal the Adjudication Order No. ADJ/680/AD/BDB/B/2003 dated 27.5.2003 whereby a penalty of Rs. 21 lakhs is imposed against the appellant for contravention of the provisions of section 8(3) read with section 8(4) of the FERA, 1973 r/w section 49(3) & 49(4) of FEMA, 1999 on the grounds that the appellant has failed to account for the utilisation of the foreign exchange equivalent to Rs. 14,03,770 which the appellant acquired as remittance. After issuance of SCN No. T-4/180/AD(AKM)/B/BE/2002 dated 20.5.2002 and hearing the appellant the adjudication order is passed.

The counsel for the appellant has invited this Tribunal's attention to the photocopy of bill of entries available at page 37-38. The counsel also invited us to look at the contents of the authorised bankers two letters dated 30.7.96 which are filed alongwith the appeal and are available at page 35 & 36 of the record. According to these two letters with regard to the bill of entry No. 3663 dated 10.5.96 and 7065 dated 18.1.96 of the import has been made whose value is shown therein. As the documents of import are filed with the authorised banker by the appellant, so contravention of the provision of section 8(3) and 8(4) is difficult to make out or sustain. However, these documents are required to be considered. The adjudication order does not outline that these documents are considered before passing the order.

In view of the above situation it appears appropriate to quash the adjudication order and set it aside. The case is remanded to the adjudication authority for a fresh decision on consideration of the aforesaid two Bill of Entry after giving an opportunity of hearing to the appellant. The appellant is directed to appear before the adjudicating authority on 16.6.04 for hearing. The adjudication authority may pass an appropriate order so far as practical within a period of three months from 16.6.04 in this matter.

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